Note:
Decisions of a three-justice panel are not to be considered as precedent before
any tribunal.

ENTRY
ORDER

SUPREME
COURT DOCKET NO. 2004-535

MARCH
TERM, 2006

Kirk Wool } APPEALED
FROM:

}

}

v. } Washington
Superior Court

}

John Gorczyk, Commissioner of }

Department of Corrections } DOCKET
NO. 731-11-02 Wncv

Trial Judge:
Alan W. Cook

In
the above-entitled cause, the Clerk will enter:

Plaintiff Kirk
Wool, a prisoner, appeals an order of the district court granting judgment on
the pleadings to the Commissioner of the Department of Corrections (DOC) on
plaintiff=s claim that
a surcharge imposed by the DOC on plaintiff=s
telephone calls was unlawful. We affirm.

Plaintiff
filed a complaint alleging that the $1.75 surcharge imposed by the DOC between
1993 and 1996 on each telephone call made by an inmate (1) violated the Vermont
Administrative Procedures Act (VAPA) and (2) exceeded the DOC=s authority. The
Commissioner moved for judgment on the pleadings, arguing that plaintiff could
not challenge the surcharge under VAPA because the surcharge was not a Arule@ to which VAPA=s
requirements applied and the surcharge fell within the statutory authority
granted the DOC. The trial court granted the motion, relying on King v.
Gorczyk, 2003 VT 34, 175 Vt. 220, to conclude that the surcharge was not a Arule@ for purposes of VAPA because it did not alter
or affect plaintiff=s
substantive legal rights. Id. & 24.
The court also concluded that the DOC had statutory authority to impose the
surcharge under 28 V.S.A. '' 102(b)(1)
& (2).

On appeal,
plaintiff does not directly engage the basis for the trial court=s ruling. Rather,
plaintiff argues that 28 V.S.A. '
802a(d) mandates that the DOC strive for the lowest cost possible for inmate
phone calls. Section 802a(d) requires that any contract negotiated by the DOC
for telephone services provide the lowest costs to inmates and their families.
As acknowledged by plaintiff, however, the surcharge is not a creature of the
telephone contract, but a fee imposed separately by the DOC. Thus, the statute
does not apply to the surcharge, and its goal of assuring low costs is not
relevant to this appeal.

Plaintiff also
asserts that our decision in State v. Handson, 166 Vt. 85 (1996), holds
that the DOC may not pass on this type of surcharge to inmates. Plaintiff=s reliance on Handson
is misplaced, as that case addressed the question of whether the DOC could
impose such a surcharge on the Defender General=s
Office, which was responsible for the expenses involved with an inmate=s self-representation. Id.
at 91.

Finally,
plaintiff argues, in passing, that the DOC=s
authority to impose fees is limited to contracts with collection agencies under
28 V.S.A. 102(b)(12), and room and board under 28 V.S.A. 102(c)(14). Plaintiff
does not offer support, however, for his contention that the DOC requires
specific legislative authorization for decisions that implement the DOC=s mandate to Aestablish and administer
programs and policies for the operation of the correctional facilities of the
department.@ 28
V.S.A. ' 102(b)(2).